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San Francisco Peaks Lawyer in the Clear; Snowbowl Fight Continues

Anne Minard

9/14/12

The Arizona attorney who fought against using reclaimed wastewater to make snow on the San Francisco Peaks has been cleared of an order to repay the defendants’ costs. Ralph Nader jumped to the aid of Howard Shanker earlier this summer along with several other nationally known activists and legal scholars. They said allowing the ski resort Shanker had been fighting, called Arizona Snowbowl, to go after him would have had a chilling effect for grassroots plaintiffs seeking help from pro bono attorneys. “On behalf of those who cherish the First Amendment right of every citizen to petition the courts, we applaud the majority of the panel for their judicious reconsideration of the order imposing costs, which would have planted yet another barrier between the people and the courthouse door,” Nader said in a statement following this week’s ruling. “In bringing this lawsuit pro bono – meaning not only for the public good, but also for free – attorney Howard Shanker represented the highest ideals of the legal profession. He deserves to be commended.” Tribal and environmental activists hired Shanker, a Phoenix-based attorney, in two separate cases to try to stop snowmaking at Arizona Snowbowl, which has long occupied the mountain considered sacred by at least 13 American Indian tribes. They won the first case, Navajo Nation v. U.S. Forest Service, only to have the verdict overturned on appeal in 2008. That first case sought to stop snowmaking by alleging violations of the American Indian Religious Freedom Act of 1978, and the National Environmental Policy Act of 1970. In the second case, Save The Peaks Coalition v. U.S. Forest Service, Shanker and a new set of plaintiffs tried to take up a point that had fallen through the cracks: a health risk if people should ingest the fake snow. When that case reached the appeal stage early this year, a three-judge panel on the 9th Circuit issued a strongly-worded attack on Shanker and the plaintiffs, accusing them of “grossly abusing the judicial process” and “unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service.” Shortly thereafter, Arizona Snowbowl’s attorneys submitted documents demanding repayment for their legal fees. They asked at first for a sum approaching $300,000, but that figure was reduced to about $30,000 in subsequent filings. Shanker moved to fight the charges, and a high-profile coalition of attorneys and activists tried to come to his aid by filing an amicus brief. At the time, Shanker’s supporters – which included Nader, the Association on American Indian Affairs, the Native American Rights Fund, the Women’s Earth Alliance, The Morning Star Institute, the Center for Biological Diversity and two Arizona State University law professors – said that allowing him to be sued would cripple the ability of tribal and environmental activists to employ pro bono lawyers to help them in court. Shanker and his supporters received bad news on July 27, when the three-judge 9th Circuit panel flatly denied both Shanker’s appeal and the attorneys’ and activists’ move to formally support him. But in an unusual turnaround on August 2, that panel abruptly reversed its decision and agreed to consider both motions. And on August 28, the panel released their latest ruling that puts the whole matter to rest – almost. “Our order … is hereby amended,” it reads. “All portions of the order, except for the portion denying [Snowbowl’s] motion for attorney’s fees, are withdrawn, Snowbowl’s motion for costs is denied.” “I’m mostly vindicated,” Shanker said recently. “But the initial decision still has that language out there, that I ‘grossly abused the judicial process.’ I’d be happier if they stopped using the reclaimed sewer water on the Peaks and withdrew the first opinion, but that’s probably too much to ask for.” Meanwhile, snowmaking opponents haven’t given up. At the request of the Hopi Tribe, the U.S. Forest Service has re-opened consultation with the U.S. Fish and Wildlife Service over possible threats to an endangered alpine plant near the ski slopes. The Forest Service’s initial review didn’t take into account that mountain winds could blow the nitrogen-rich effluent within range of the plant, imperiling its survival. But a thorough review by Phoenix-based SWCA environmental Consultants, hired by the Hopi Tribe, indicated there’s enough risk to warrant further review. Protests have continued though as two individuals used different actions to express their concerns about the situation in August. In mid-August a Navajo tribal member, Kris Barney, walked 200 miles from his home in Rough Rock, Arizona to downtown Flagstaff to raise awareness about the issue. The, the last week of August, a college-aged activist drew local attention – and some concern – when he staged a “tree sit” near downtown Flagstaff to protest construction of the pipeline destined to carry the treated wastewater up the mountain. James Kennedy. A Northern Arizona University student, stayed on a precarious platform 80 feet high in a pine tree for just over three days, baffling law enforcement officers who were powerless to force him down. Kennedy ended up descending the tree using an emergency rappel line in the middle of the night, when monsoon storms brought lighting within feet of his perch.

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